Several years ago the federal boards of contract appeals were consolidated into two principal boards: the Armed Services Board of Contract Appeals and the Civilian Board of Contract Appeals. While the Postal Service board and Tennessee Valley Authority board continue to exist, the boards have otherwise been consolidated from 11 down to two.
The CBCA has assumed the responsibilities of former boards such as Agriculture, General Services, Department of Transportation, Veterans Affairs, Energy and Labor. The ASBCA has retained its traditional DOD jurisdiction for the Corps of Engineers and NASA boards. This consolidation leads to an interesting question. Are the results of contractor appeals to the new boards consistent with what contractors previously expected under the old boards?
Navigant Consulting, Inc., a global expert services firm serving the construction and engineering industries and presenters of WPL's upcoming webinar on Construction Scheduling, recently studied this issue. The investigators examined results from the old boards in construction related cases, categorizing them as for the government, for the contractor, or mixed. The investigators then performed a similar examination of results from the new ASBCA and CBCA. The results were then compared.
The report, issued by Navigant Executive Director James G. Zack, Jr., concluded that the percentage of success for contractors under the new ASBCA was not significantly different from what was expected under the old boards. But with the new CBCA, there were fewer outright rulings in favor of the government and more mixed decisions.
The Navigant report, “The New Boards of Contract Appeals: Are They Still Predictable?” theorizes that the administrative judges on the consolidated ASBCA brought considerable experience and expertise in construction matters; hence the consistency. But the administrative judges on the consolidated CBCA do not have as much construction experience. Their uncertainty makes them less willing to rule outright in favor of the government and more likely to issue a mixed decision.
Predictability is important. It guides a contractor’s decision whether or not to spend money appealing an agency’s denial of a claim.
What has your experience been with the new consolidated boards? Any insights augmenting the Navigant study would be welcome.
Don't miss James G. Zack's webinar presentation, along with Navigant colleagues Amanda Amadon, and Steve Pitaniello, as they provide valuable tips on how to avoid the pitfalls of “scheduling gamesmanship.” The series’ three 90-minute webinars will take place March 2, March 9, and March 16, each beginning at 1:00 p.m. (EST). For event details and registration, click here.
Featured in Next Week's Construction Claims Advisor:
- Agency Personnel Costs Included in Liquidated Damages Rate
- Fast-Track Project Proceeded Without Written Contract
- Engineer Protected by Language in Construction Contract
Bruce Jervis, Editor
Construction Claims Advisor